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02 November 2017

Proposals to substitute the IMPRESS code for the IPSO Editors' Code of Practice in the journalistic exemption to data protection legislation are strongly opposed by the News Media Association.

The proposals are contained within amendments to the Data Protection Bill, which is at the Committee stage in the House of Lords, tabled by Lib Dems Lord Clement-Jones and Lord McNally, Labour's Lord Stevenson and Lord Kennedy, and Lord Skidelsky, Crossbench.

The NMA said: “The Editors’ Code, upheld by IPSO, is the only code covering the UK press, which 1500 national, regional and local print titles and 1100 websites are signed up to. It makes no sense to replace this with the IMPRESS code observed only by a small number of hyperlocal websites and blogs and by no significant newspapers at all.

"This would penalise publishers and editors who have chosen on press freedom grounds not to engage with a regulator funded by Max Mosley and set up purely to trigger the draconian Section 40 costs sanctions which the newspaper and magazine industry believes must be repealed.”

If the IPSO Editors’ Code is not listed in the data protection legislation, as it is currently alongside the BBC's Editorial Guides and Ofcom's Broadcasting Code, IPSO and code compliance could be disregarded by the courts and Information Commissioner in considering what constituted publication in the public interest and reasonableness of belief in it, when dealing with claims or considering enforcement action against the press, where it sought to rely on the journalistic exemption, the NMA added.

There are also various vital freedom of expression amendments needed to the Bill, in order to safeguard journalistic exemptions, protect legitimate investigative journalism, and avoid the Information Commissioner’s Office becoming a statutory media regulator. The media, broadcast, print and online, are united by these concerns.

Earlier this week, on the opening day of the Lords Committee stage, an amendment moved by Lord Stevenson to provide for a general right to the protection of personal data, which could override the exemptions for journalistic, literary, academic, and artistic purposes was withdrawn after effective arguments against it from Lords.

Lord Pannick, Crossbench, said: “The Bill contains exemptions because there are other interests in this area, and other rights, which conflict with the right to protection of personal data, and a fair balance is required. The Committee will want to debate the scope of those exceptions and limitations and be satisfied that the balance has been struck correctly. But Amendment 4 suggests that there is some absolute right to the protection of personal data. That is simply wrong.”

Lord Lester, Lib Dem, said: “The Minister has rightly put on the front page of the Bill his opinion that the Bill is compatible with the convention rights. Those rights include the right to free speech in Article 10 and the right to respect for privacy in Article 8.

"The Minister could certify in that way because the Bill rightly carries forward from the previous Act journalists’ rights—for example, to protect their sources—which you can find buried away in Schedule 2(5). The Minister was able to do that because we have the Human Rights Act, which requires him to do so, and the European convention, which strikes a balance between free speech and privacy.”

He continued: “The amendment in its original form, and its amended form, seeks to give legal force to one bit of the charter. It squints. It looks at Article 8 of the charter on privacy and data protection, but it does not look at the other bit of the charter that deals with free speech.”

Lord Faulks, Conservative, said: "There are distinct dangers that it will be relied upon by those whose data should be accessed, such as terrorists. I fear that we have as yet received no clear explanation of the justiciability of the provision and how it will work in practice, in particular in what circumstances it will provide protection which would not otherwise be provided by the detailed provisions of this Bill. It follows that this amendment is, in my view, incoherent, unnecessary and even potentially dangerous - but that is a charitable view."

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